TERMS AND CONDITIONS
This agreement sets out the basis on which the Customer purchases the Products for resale from the Supplier and on which the Supplier agrees to sell the Products to the Customer with the Manufacturer having granted to the Supplier certain rights to distribute the Products within the Territory.
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement and the Background:
Affected Party: shall take the meaning given to it in clause 15.1.
Business Day: any day other than a Saturday, Sunday or public holiday in England.
Buyer: shall take the meaning given to it in clause 13.1.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Customer: means the party, which enters into a contract with the Supplier to purchase the Products subject to the terms and conditions of this agreement.
Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); and interruption or failure of utility service.
Intellectual Property: means copyrights, database rights, trade marks, trade names, domain names, rights in logos, get-up and content, inventions, trade secrets, technical information and know-how, patents, all rights of whatever nature in computer software and data, all rights of privacy and intangible rights and privileges of a nature similar to any of the above, in every case in any part of the world and whether or not registered, and including all granted or pending registrations, and all rights to make applications for registration in respect of any of the same and any further intellectual property subsisting in respect of or in connection with the Product.
Loss: means charges, claims, costs, damages, demands, expenses, liabilities and losses.
Manufacturer: means the party which has supplied the Products to the Supplier.
Order: means a written order sent by the Customer to the Supplier for the supply of the Products, consisting an offer capable of acceptance by the Supplier.
Product: the products which the Manufacturer has granted the certain rights to the Supplier to distribute within the United Kingdom and which are manufactured and packed under the Intellectual Property as detailed within the Order.
Recipient: shall take the meaning given to it in clause 6.7.
Relevant Claim: shall take the meaning given to it in clause 10.1.
Reserved Territories: means the countries falling outside of the Territory, being those countries and areas in respect of which the Manufacturer has appointed an exclusive distributor or otherwise reserved to itself.
RRP: shall take the meaning given to it clause 3.5.
Supplier: means Race FX Limited, whose registered company number is 05226015 and whose registered office is at RFX House, Challenge Way, Greenbank Technology Park, Blackburn, Lancashire, BB1 5QB.
Term: the term of this agreement, being the period of time throughout which the Customer sells the Products which it purchased from the Supplier.
Territory: means the United Kingdom and Ireland.
Transfer: assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.3 References to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A person includes a corporate or unincorporated body.
1.4 The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this agreement. A reference to any party shall include that party's personal representatives, successors or permitted assigns.
2. Formation of Contract
2.1 The Customer agrees and acknowledges that any Order for the purchase of the Products that it places with the Supplier is made subject to these terms and conditions. The Supplier may issue an order acknowledgement but the legally binding agreement between the parties shall not be formed until such time as the Supplier issues its order acceptance to the Customer.
2.2 The Supplier sells to the Customer on a non-exclusive basis and appoints the Customer to sell, market and promote the Products strictly within the Territory on the terms of this agreement.
2.3 The Customer shall refrain from making active sales of the Products to customers in the Reserved Territories. For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including, but not limited to, the following actions:
(b) direct mail, including the sending of unsolicited emails;
(c) advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at customers in Reserved Territories;
(d) online advertisements addressed to customers in Reserved Territories and other efforts to be found specifically by users in Reserved Territories, including the use of territory based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users in Reserved Territories; and
(e) advertising or promotion in any form, or translation of the Customer’s website into a language other than an official language of any country forming part of the Territory, that the Customer would not reasonably carry out but for the likelihood that it will reach customers in Reserved Territories.
2.4 The Customer shall not establish, or maintain any branch, sales outlet or distribution depot in Reserved Territories for the sale of the Products.
2.5 The Customer shall not without the Supplier's prior written consent make any promises or guarantees about the Product beyond those contained in the promotional material supplied to it by the Supplier.
3. Customer's Undertakings and Obligations – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
3.1 The Customer shall purchase the Products only from the Supplier.
3.2 The Customer shall not:
(a) represent itself as an agent of the Supplier for any purpose;
(b) pledge the Supplier’s credit;
(c) give any condition or warranty on the Supplier’s behalf;
(d) make any representations on the Supplier’s behalf;
(e) commit the Supplier to any contracts; or
(f) otherwise incur any liability for or on behalf of the Supplier.
3.3 The Customer shall not, without the Supplier’s prior written consent, make any promises or guarantees about the Products beyond those contained in the promotional material supplied by the Supplier.
3.4 The Customer undertakes and agrees with the Supplier that at all times during the Term it will:
(a) use its best endeavours to promote the sale of the Product;
(b) not do anything which may in the reasonable opinion of the Supplier have an adverse effect on the Intellectual Property subsisting in the Products;
(c) employ a level of staff that it deems to be competent and experienced to perform its obligations under this agreement;
(d) keep all stocks of the Product which it holds in conditions appropriate for their storage, and provide appropriate security for the Product, all at its own cost;
(e) restrict other distributors to which it sells the Products from making active sales of the type described in clause 2.3 or otherwise selling the Products outside of the Territory; and
(f) effect and maintain insurance at its own cost with a reputable insurance company in respect of all stocks of the Product as are held by it against all risks which would normally be insured against by a prudent businessman to at least their full replacement value and produce to the Supplier on demand full particulars of that insurance and the receipt for the then current premium.
3.5 The Customer understands that the Supplier may assign Recommended Retail Prices (RRP) to the Products from time to time and where this is the case the Supplier shall provide written notice to the Customer. The Products are premium, quality products and the Intellectual Property subsisting in them carry a high degree of reputation and goodwill and the Customer acknowledges that any such RRPs are designed to protect:
(a) the reputation and goodwill in the Intellectual Property which has been built by the Manufacturer or such other third parties, as the case may be; and
(b) the interest which the Supplier has vested in the reputation and goodwill in that Intellectual Property by virtue of the Supplier holding the certain rights to distribute the Products granted to it by the Manufacturer.
3.6 The Customer agrees that it shall not resell the Products at a price exceeding the maximum resale price from time to time specified by the Supplier in writing.
3.7 At such times as the Supplier requests, the Customer shall:
(a) submit reports to the Supplier, showing details of sales, service stock, orders and any other information relating to the performance of its obligations under this agreement that the Supplier may reasonably require from time to time;
(b) keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the Products; and
(c) to allow the authorised representatives of the Supplier or their duly appointed agents to have access to the premises of the Customer at all reasonable times for the purpose of inspecting the aforesaid books and records.
4. Supply of the Product
4.1 Unless otherwise agreed in writing between the parties, the Supplier shall make delivery of the Products EXW (Incoterms 2010) Rfx House, Challenge Way, Greenbank Technology Park, Blackburn, Lancashire, BB1 5QB. The Customer shall buy the Product for its own account for resale under this agreement.
4.2 The Supplier shall reasonable endeavours to make delivery within 7 days of the date of this agreement coming into effect in accordance with clause 2.1 above save that time for delivery of the Products shall not be of the essence.
4.3 The Manufacturer may make changes to the specifications of the Product, which will be passed on by the Supplier provided that the changes do not adversely affect the quality of the Product. The Supplier shall give no less than 1 month’s notice of any changes to Product specifications to the Customer.
4.4 The risk of loss, theft, damage or destruction of the Products shall pass to the Customer on delivery. The Customer shall be solely responsible for the custody of the Products and save that unless otherwise expressly agreed in writing, the Products shall remain the property of the Supplier for the period until all payments of charges under this Agreement have been made in full and unconditionally (Supplier Ownership Period).
4.5 During the Supplier Ownership Period, the Customer shall keep the Products identifiable from all other goods, property and equipment in its possession as bailee for the Supplier.
4.6 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Products arising out of or in connection with the Customer's possession or use of the Products during the Supplier Ownership Period.
4.7 In the event of any resale by the Customer of the Products during the Supplier Ownership Period, the beneficial entitlement of the Supplier shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Supplier and until and subject to such assignment shall be held on trust in a separate identified account for the Supplier by the Customer who will stand in a strictly fiduciary capacity in respect thereof. Such sums to the extent that they satisfy any outstanding Fees owed to the Supplier shall be accounted to the Supplier by the Customer within 2 Business Days of their receipt.
4.8 In the event of failure to pay the price in accordance with the Agreement, the Supplier shall have the power to enter the premises at which the Products are being held without obstructions and to take back and resell the Products. Such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purposes the Supplier and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Customer to remove the Products. In the event that the Supplier, its agents or subcontractors are required to take back possession of the Products, the Customer shall indemnify the Supplier in respect of all costs incurred by it in exercising these rights.
5. Supplier's Undertakings
5.1 The Supplier undertakes to:
(a) provide any information and support free of charge that may reasonably be requested by the Customer to enable it to discharge its duties under this agreement properly and efficiently;
(b) approve or reject any promotional information or material submitted by the Customer within 5 Business Days of receipt with the Supplier being deemed to have rejected such promotional material where it does not respond within such timeframe.
6. Prices and Payment
6.1 The price to be paid by the Customer to the Supplier for the Products are unless otherwise agreed in writing, to be the Supplier’s list prices as notified to the Customer by the Supplier from time to time.
6.2 Unless otherwise agreed between the parties, the Supplier requires that the price for the Products be paid in full by the Customer in advance of delivery taking place. Where and to the extent that any credit terms are agreed, the Supplier may issue invoices for the Products from time to time and the Customer shall be required to pay any such invoices to the Supplier in full and pounds sterling within 30 days of the date of that invoice issued by the Supplier unless such other date as is agreed between the parties and specified on the relevant invoice.
6.3 Where the Customer fails to make any payment to the Supplier by the due date for payment, the Supplier may charge interest on such overdue sum at a rate of 8% above the base rate of Barclays Bank plc from time to time from the due date for payment until the date on which the payment is made, whether before or after any judgment.
6.4 The Customer may not withhold payment of any amount due to the Supplier because of any set-off, counter-claim, abatement, or other similar deduction. All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase, export or import of the Product shall be the responsibility of, and for the account of, the Customer.
6.5 The Supplier may set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, the Supplier may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
6.6 All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any value added tax which may from time to time be chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for value added tax purposes.
6.7 Where, under this Contract, any party makes a supply to any other party (the Recipient) and tax is or becomes chargeable on that supply for which the supplying party is required to account to the relevant tax authority, the Recipient shall be liable to pay the supplying party the amount of such tax.
7. Advertising and Promotion
7.1 The Customer shall:
(a) display advertising materials and other signs provided by the Supplier;
(b) observe all reasonable directions and instructions given to it by the Supplier for promotion and advertisement of the Product; and
(c) not make any written statement as to the quality or manufacture of the Product without the prior written approval of the Supplier.
7.2 The Supplier shall provide the Customer with information on the advertising and promotion to be carried out by the Customer where it deems it necessary.
8. Compliance with Laws and Regulations
The Customer shall at all times:
(a) provide all assistance reasonably required by the Customer in connection with the obtaining of any necessary import licences or permits save that the Customer shall be responsible for the payment of any customs duties, clearance charges, taxes, brokers' fees and other amounts payable in connection with the importation and delivery of the Product arising out the sale of the Products to the Customer by the Supplier;
(b) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 or engage in any activity, practice or conduct which would be a breach of such laws if conducted in the UK and immediately report to the Supplier any actual or potential breach of this clause; and
(c) ensure that any person associated with the Customer in connection with this agreement is engaged on terms equivalent to those imposed on the Customer in this clause 8. The Supplier shall be responsible for the observance and performance by such persons of such terms, and shall be directly liable to the Supplier for any breach. For the purpose of this clause 8, a person associated with the Customer includes but is not limited to any agent, delegate or subcontractor of the Customer.
9. Intellectual Property – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
9.1 The Supplier hereby grants to the Customer the non-exclusive right to use the Intellectual Property in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this agreement. Such rights are granted to the Customer by the Supplier as sub-licensee and the Customer acknowledges and agrees that all rights in the Intellectual Property shall remain in the Manufacturer or such other third party as the case may be (and the Supplier to the extent that the same have been granted to it by the Manufacturer), and that Customer has and will acquire no right in them by virtue of the discharge of its obligations under this agreement, except for the right to use the Intellectual Property as expressly provided in this agreement.
9.2 The Products shall be sold under the Intellectual Property and the Customer shall not alter, deface or remove any reference to the Intellectual Property. In the event that the Manufacturer imposes any rules for use of its Intellectual Property, the Supplier shall notify the Customer of this fact and the Customer warrants that it shall comply in every respect with such rules in connection with its performance of its obligations under this agreement.
9.3 The Supplier makes no representation or warranty as to the validity of enforceability of the Intellectual Property nor as to whether they infringe any intellectual property rights of third parties.
9.4 The Customer shall promptly give notice in writing to the Supplier if it becomes aware of:
(a) any infringement or suspected infringement of the Intellectual Property or any other intellectual property rights relating to the Product; or
(b) any claim that any Product or the manufacture, use, sale or other disposal of any Product, whether or not under the Intellectual Property, infringes the rights of any third party.
9.5 In respect of any matter that falls within clause 9.4 the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any) and shall conduct and have sole control over any consequent action that it deems necessary.
9.6 The Customer shall, at its own expense, provide any reasonable assistance to the Supplier (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the Supplier under this clause 9.
9.7 The Customer shall not use the Intellectual Property as part of the name under which it conducts its business, or any connected business, or under which it sells or services any products (except the Products), or in any other way, except as expressly permitted hereunder.
9.8 The Customer shall not sub-licence, assign, transfer, charge or otherwise encumber the right to use, reference, or designate the Intellectual Property to any other party except as otherwise expressly permitted under this agreement.
10. Product Liability and Insurance
10.1 The Customer undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Products or batches of Products. These records shall include records of deliveries to customers (including batch numbers, delivery date, name and address of customer, telephone number and email address).
10.2 The Customer shall, at its cost, give any assistance that the Supplier shall reasonably require to recall any Products as a matter of urgency.
11. Limitation of Liability – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
11.1 Nothing in this agreement shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation or wilful default; and
(c) any matter in respect of which it would be unlawful to exclude or restrict liability.
11.2 Subject to clause 11.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect, special or consequential Loss arising out of or in connection with any act or omission of the Supplier including any loss of profit, contract, business, revenue, anticipated savings, goodwill or reputation; and
(b) the Supplier's total liability to the Customer in respect of all Losses arising under or in connection with this agreement and which is sustained or incurred by the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Order to which that liability relates.
11.3 The Customer hereby indemnifies, keeps indemnified and holds harmless the Supplier against any and all Loss arising out of or in connection with the Customer’s breach of this agreement or any act or omission of the Customer under or in connection with this agreement.
12. Term, Termination and Consequences of Termination – THE CUSTOMER’S SPECIFIC ATTENTION IS DRAWN TO THIS CLAUSE
12.1 This agreement shall come into force in accordance with clause 2.1 and remain in force for the Term unless terminated earlier in accordance with clause 12.2 below.
12.2 Save for clause 12.2(l), which for the avoidance of doubt the Customer may not exercise rights in accordance with, without affecting any other rights that it may be entitled to, either party may give notice in writing to the other terminating this agreement immediately if:
(a) the other party commits a breach of any material term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days of being notified in writing to do so; or
(b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or having no reasonable prospect of so doing or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(g) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(i) the other party (being an individual) is the subject of a bankruptcy petition or order or (being a partnership) has any partner whom is the subject of a bankruptcy petition or order; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(d) to clause 12.2(j) (inclusive); or
(l) the other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
(m) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(n) there is a change of Control of the other party; or
(o) the other party purports to assign its rights or obligations under this agreement (except where otherwise permitted).
12.3 In the event that the Supplier would become entitled to exercise its rights to terminate the agreement in accordance with clause 12.2 above then it may at its absolute discretion but without prejudice to its right to terminate the agreement, impose restrictions on the activities of the Customer together with conditions as to how this may be overcome by the Customer. Such restrictions may without limitation include restraints on the channels through which the Customer may sell the Products;
12.4 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
12.5 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
12.6 On termination the Supplier may exercise a right to buy back from the Customer any or all of the stocks of the Product held by the Customer at the same price as that which the Customer paid the Supplier for them. The Customer shall deliver such Product to the Supplier DDP (Incoterms 2010) RFX House, Challenge Way, Greenbank Technology Park, Blackburn, Lancashire, BB1 5QB within 5 Business Days of receipt of payment for the Product which shall be made by the Supplier within 10 Business Days of the termination or expiry of the agreement.
12.7 All other rights and licences of the Customer under this agreement shall terminate on the termination date.
13. Transfer of the Customer’s Business
13.1 The Customer shall immediately notify the Supplier in writing in the event:
(a) that any third party proposes to or is proposed to acquire or acquires its business (Buyer) and provide the Supplier with the details of the Buyer; or
(b) of a change of Control or any proposed change of Control, in which case the party obtaining Control shall be deemed the Buyer for the purposes of this clause 13.
13.2 The Customer shall procure that any Buyer shall at the election of the Supplier novate, assign or enter into an agreement in identical terms to this agreement immediately following the sale or disposal or change of Control and in any event within 10 Business Days of the sale or disposal or change of Control.
13.3 In the event that the Customer is unable to comply with clause 13.2 above, the Customer agrees that it shall be entitled to exercise any of the rights available to it under clause 12 above.
13.4 The Customer shall indemnify and keep indemnified the Supplier and hold the Supplier harmless in respect of all present and contingent liabilities incurred by the Supplier in connection with the agreement from the date on which the Customer notifies the Supplier in accordance with clause 13.1 above.
14.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as provided by clause 14.2.
14.2 Each party may disclose the other party's confidential information:
(a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 14; and
(b) as may be required by law, court order or any governmental or regulatory authority.
14.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
15. Force Majeure
15.1 Provided it has complied with clause 15.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.2 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.3 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 3 months, the party not affected by the Force Majeure Event may terminate this agreement by giving 10 Business Days’ written notice to the Affected Party.
16. Entire Agreement
16.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by airmail, pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to it’s the following email address:
(i) the Supplier: firstname.lastname@example.org; and
(ii) the Customer: the address notified to the Supplier by the Customer in any Order,
or such other senior contact with whom at has become accustomed to correspond in the course of performance of this agreement.
17.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand or airmail, on signature of a delivery receipt or at the time the notice is left or received at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
(c) if sent by email, at 9.00 am on the next Business Day after transmission provided that a valid read receipt has been received.
17.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.1 Save as otherwise provided for in this agreement, no amendment or variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.2 The Customer shall not Transfer any or all of its rights and obligations under this agreement without the prior written consent of the Supplier. The Supplier may Transfer any or all of its rights and obligations under this agreement without the prior written consent of the Customer.
18.3 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.4 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
18.5 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.6 Except as expressly provided elsewhere in this agreement, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.7 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18.8 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has executed and delivered at least one counterpart.
18.9 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
18.10This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.11Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).